Dowty v. Riggs
2010 Ark. 465
| Ark. | 2010Background
- Incident occurred Oct 29, 2004 at Evelyn's home; Perry Riggs shot Gene Dowty and continued firing, Karen Dowty helped Riggs escape with Riggs; no serious injuries to Dowtys.
- Perry was charged but acquitted due to mental disease or defect.
- On Oct 12, 2007, Karen, Gene, and Riggs filed suit for negligence (premises liability, negligent entrustment) and negligent infliction of emotional distress by Karen and Riggs.
- Evelyn moved for summary judgment; argued Arkansas does not recognize negligent infliction of emotional distress (NIED) and no physical injury.
- Circuit court granted summary judgment for Evelyn; certification under Rule 54(b) allowed immediate appeal as to Karen and Riggs.
- This court upheld the circuit court’s grant of summary judgment and affirmed the Rule 54(b) certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Willful/wanton conduct supports recovery | Dowtys contend Evelyn's knowledge of Perry's danger shows willful/wanton conduct. | Evelyn argues no ruling on this issue; appeal improper for lack of ruling. | Not decided; no circuit ruling to review on this issue. |
| Whether Arkansas should recognize negligent infliction of emotional distress | Dowtys urge recognizing a new NIED tort given facts. | Riggs argues against creating a new tort and adherence to precedent. | Arkansas does not recognize NIED; court declines to create a new tort. |
| Whether the appeal is properly before the court under Rule 54(b) | Dowtys argue circuit certification justifies immediate appeal as to two plaintiffs. | Evelyn contends lack of sufficient reasons for finality. | Certification facts justify final, appealable order; immediate appeal proper. |
Key Cases Cited
- Bayird v. Floyd, 344 S.W.3d 80 (2009 Ark. 455) (Rule 54(b) final judgment certification review)
- Erwin v. Milligan, 67 S.W.2d 592 (Ark. 1934) (physical injury required for certain emotional-distress claims; remote/uncertain damages)
- FMC Corp. v. Helton, 202 S.W.3d 490 (Ark. 2005) (NIED not recognized in Arkansas)
- Mechs. Lumber Co. v. Smith, 752 S.W.2d 763 (Ark. 1988) (premises liability/standards; historical doctrine on damages)
- Zinger v. Terrell, 985 S.W.2d 737 (Ark. 1999) (decision to revisit precedent in tort matters)
- Rees v. Smith, 301 S.W.3d 467 (Ark. 2009) (judicial caution in recognizing new torts; policy considerations)
- Cochran v. Bentley, 251 S.W.3d 253 (Ark. 2007) (strong presumption in favor of precedent; public policy)
- Olan Mills, Inc. v. Dodd, 353 S.W.2d 22 (Ark. 1962) (emotional distress damages; historical authorities)
- Growth Props. I v. Cannon, 669 S.W.2d 447 (Ark. 1984) (elements for mental anguish damages in certain contexts)
- Hess v. Treece, 693 S.W.2d 792 (Ark. 1985) (emotional distress and intentional tort considerations)